Archives for March 2015

One commonly overlooked risk to misclassifying workers as independent contractors rather than employees was recently highlighted when a jury awarded more than $500,000 to a painter who was hurt when he fell from a ladder while working at an apartment building. The problem: the putative employer and owner of the building did not have workers’ compensation insurance because, he claimed, he did not have any employees. The jury’s disagreement led to the large damages award, which exceeded $700,000 with interest and costs.

Under Massachusetts law, all employers are required to provide workers’ compensation insurance to their employees. Most do so through insurance policies while some choose to be self-insured. Employers who fail to provide coverage can face penalties and, as here, lawsuits from injured workers. While many companies who use independent contractors deal with these risks by requiring them to obtain their own accident policies or providing coverage for workplace injuries to them, the defendant here apparently failed to do so.

The Massachusetts independent contractor statute requires all workers to be treated as employees unless they are free from control in the performance of their duties; perform work that is outside the scope of a company’s normal course of work; and operate their own independent businesses. Penalties for violations of the law can be severe. In addition to the lawsuit successfully pursued here, workers can seek back wages, tax liabilities, and other damages. State agencies can perform audits, assess back wages and other expenses, and impose penalties. Offending employers can be forced to pay a worker’s legal fees, and triple damage awards are mandatory in private cases.

The new Massachusetts domestic workers statute — captioned in the Legislature as a “Bill of Rights” for this class of employees — is set to take effect on April 1. It provides variety of rights to housekeepers, nannies, caregivers, cooks, and others who work in residences across the Commonwealth.

The law was enacted in June 2014. Among its highlights are requirements that individuals who work more than 40 hours per week in covered job categories receive a 24-hour rest period each week and a 48-hour rest period each month; that employees who don’t live at the home where they are providing labor be paid for every hour they work up to 24 consecutively; that, for those employees who do live in the home, sleep-time hours deductions and meals/ lodging deductions be written; and that domestic workers receive maternity leave rights. The statute also requires employers of domestic workers to keep records of wages paid and hours worked. It grants privacy rights to domestic employees, who may also request job reviews from their employers. Advance notice or severance pay may be required when employment of live-in workers is terminated without cause. Babysitters are not covered by the new statute.

The statute also expressly prohibits sexual advances that are tied to a domestic worker’s job security or benefits. Sexual harassment of domestic workers is also expressly prohibited. The remedies provided by the Massachusetts Anti-Discrimination Statute, Mass. Gen. L. ch. 151B, apply. They include potential damages for lost wages, emotional distress and sometimes punitive damages, and legal fee reimbursement.

Our client was an employee of a large package delivery company. After experiencing what she believed to be inappropriate sexual behaviors by a supervisor, she reported the conduct to his superior and asked that it stop. She did not file nor did she wish to file a harassment or discrimination complaint. Though she was assured by upper management that the supervisor would curb his conduct going forward, our client soon became the target of investigations into her attendance and related issues. She was fired several times for minor infractions that were previously ignored and were common among staff. Though the company rescinded the firings each time, our client ultimately declined to return to work without assurances that she would not suffer further retaliation. When the company refused to provide it, she filed suit.

Result: After many years of litigation at the MCAD that included the dismissal of the case and, in a very rare development, its reopening after our firm located a percipient witness to the retaliation and successfully argued that his testimony was fraudulently concealed by the employer, we were able to settle the case for a substantial sum just short of an MCAD trial. The entire process took nearly 10 years, but the client’s position was fully vindicated.